ABRASION OF ARTICLE 35A: BEYOND THE LEGAL COMPETENCE

Dr Irfan Rasool

Publish Date: Sep 2 2018 10:51PM

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Updated Date: Sep 2 2018 10:51PM

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In this special essay for the Kashmir Ink, Dr. Irfan Rasool, a PhD from National Law School of India, details the never-argued legal dimensions of the J&K State Subject Law and why it would be illegal to abrogate Article 35A

It is conceded that Article 35 A was not passed by the Parliament as required by Article 368 and consequently is not a part of the Constitution.

The question of it being extended to Jammu and Kashmir even by consent of the state Government cannot arise at all because it was never made a part of the Constitution by acting under Article 368. The Parliament of India cannot empower the state legislature, under a separate Constitution, to make any law. Article 35A is an exercise in futility which was totally unnecessary as the state was ONLY in a confederal relation with India, not even a political federal relation. The Jammu and Kashmir state always had the power to make laws for Jammu and Kashmir including all matters mentioned in Article 35A. This power was never surrendered by the Instrument of Accession.

A

rticle 35-A is a legal issue. The issue however has to be analysed in its specific framework, which includes a historical analysis of the matter. There are various legal dimensions of the issue which include, among others:

a) Attempt to tamper with Article 35-A would amount to breach of treaty obligation.

b) The Supreme Court has no jurisdiction to decide over the matter.

Both issues are, however, interconnected and interwoven.

The Kashmir question can be traced back to the Treaty of Lahore, March 9, 1846, marking the end of the first Anglo-Sikh war [Alastair Lamb, Kashmir: A Disputed Legacy, 1846—1990, 7-9 (1993)] when Sikh territory was reduced to a fraction of its former size, losing Kashmir, the territory to the south of the river Sutlej and other forts after the first Sikh war with the United Kingdom. The treaty required the Maharaja, Maharaja Duleep Singh Bahadur, to pay 60 lakh rupees towards the East India Company as reparations. A provision was also made for the separate sale of Kashmir by the East India Company to Gulab Singh. The Britain, then, sold Kashmir to Gulab Singh by a treaty of sale on 16 March 1846, known as “Treaty of Amritsar”. Gulab Singh thus became the founder and Maharaja of the princely State of Jammu and Kashmir [M J Akbar, Kashmir: Behind the Vale, 56-60 (1991).].

This marked the beginning of the Dogra Rule in Kashmir. The British Government provided aid to the Maharaja to protect his territories from external enemies under Article 9, and under Article 10 of the Treaty of Amritsar Maharajah Gulab Singh acknowledged the supremacy of the British Government and continued under their suzerainty till August 1947. On July 4, 1947 the Indian Independence Bill was introduced in the British Parliament, which finally took the shape of Indian Independence Act 1947. The said Act had the effect of granting independence to the erstwhile British territory in India and of freeing of former Princely States from the suzerainty of Britain. The Princely States which were freed from suzerainty became independent and sovereign States. Kashmir was one.

Immediately after August 1947, dictated by necessity the Maharaja of Jammu and Kashmir, as representing the sovereignty of Jammu and Kashmir, signed the Instrument of Accession. The salient provisions of the Instrument of Accession executed by Maharaja on 26 October 1947 were mainly four:

The Instrument of Accession will govern the relationship with the Dominion of India (Article 1 of the Instrument of Accession (IOA))

No future Constitution of the Dominion of India was to be automatically binding (Article7, IOA).

This was a time freeze referring to what stood at the time of Accession. It was an exercise of sovereignty by both sides which set the law Inter-Partes by an exercise of Constituent power which is a manifestation of the sovereignty.

The internal administration of the State was governed by the Jammu and Kashmir Constitution Act, 1939 (Article 8, IOA).

As if to place matters beyond any doubt, Article 8 of the Instrument of Accession provided that nothing in the Instrument affected the continuance of sovereignty in and over the State, the exercise of any powers, authority and rights enjoyed by Ruler or the validity of any law present in force then except as provided by or under the Instrument. It clearly indicated that neither the sovereignty nor the validity of any law in force at that time in the State was to be affected. Jammu and Kashmir thus continued to exist as a sovereign State, with India being allowed to exercise authority by the Instrument of Accession over only the matters specified in the Schedule to the Instrument of Accession. It is pertinent to note that the State Subject notification was issued in 1927 and modified in 1932 and was an existing law at the time of the execution of Instrument of Accession and remained so by virtue of Article 8 of the Accession. And Article 35-A is a solemn provision reflecting what was accepted by two sovereign States through Treaty, the Instrument of Accession.

In this context it is also relevant to highlight the legal significance of Article 5 of the Instrument of Accession which stipulated that the terms of the Instrument of Accession were not to be varied by any amendment of the Act (Government of India Act, 1935 which was an interim Constitution till 1950 and thus also ousted out any question of variation by any future Constitution in terms of Article 7 of the Accession) or the Indian Independence Act, 1947, unless such amendment was accepted by the Maharaja by Instrument supplementary to the Instrument of Accession. In the light of the above, with regard to the relationship between Jammu and Kashmir and India, the inference that can be drawn is that the Instrument of Accession is a treaty that has been concluded between Jammu and Kashmir and India and needs to be governed under the provisions and principles of international law [ ParasDiwan, Kashmir and Indian Union: The Legal Position, 2 (3) International And Comparative Law Quarterly 333, 345, 346 (1953).]. It also implied that any domestic arrangements would not have any effect to legally alter or vary the position of Jammu and Kashmir vis-à-vis India from that specified through the Instrument of Accession. It indicates that any attempt to temper with the existing laws of Jammu and Kashmir would amount to breach of treaty obligation and thus Jammu and Kashmir under Article 60 of the Vienna Convention on the Law of Treaties 1969 can invoke “material breach of a bilateral treaty by one of the parties as a ground for terminating the treaty or suspending its operation in whole or in part”. Also relevant is Article 27 of the Vienna Convention on the Law of Treaties which provides that if a treaty conflicts with a state’s municipal law (including the state’s constitution) the state is still obliged to meet its obligations under the treaty.

This is one dimension of the issue in its wider and true sense. However it requires a separate analysis in the light of changed circumstances that is in the light of doctrine of Clausula Rebus Sic Stantibus.

The second dimension may require looking at the matter in the sequence of time, again.

After Maharaja Pratab Singh died on 23rd December 1925, he was succeeded by his nephew Hari Singh. During early years of his rule certain economic and political measures were taken which had considerable impact on the people of the State. Among many were Agriculturists Relief Regulation, compulsory primary education for boys in cities of Srinagar and Jammu and redefinition of the State Subject definition. The reasons for redefining the State Subject definition has been explained by Mohammad YousufSaraf, “Land grants were made freely to persons outside the State and with the growth of an educated class, particularly outside the Dogras, an agitation gained momentum requiring the government to confine the state employment to hereditary state subjects alone. The term was first defined in 1912 but in 1927 received a much wider and beneficial definition…It had two main advantages for the State nationals; First one was that in all future appointments, the entry of non state national became difficult…and the transfer of land to non state national was halted”. (Muhammad Yusuf Saraf, Kashmiris Fight for Freedom, Vol. I, 334 (1977).) It may be noted that the term “State Subject” was sanctioned by Maharaja Hari Singh through letter no. 2354 dated 31st January, 1927 and was modified by an order issued by Hari Singh on 27th June 1932.

Karan Singh on May 1, 1951 issued a Proclamation directing to convene a Constituent Assembly, constituted of the representatives of the people elected on the basis of the universal adult franchise and secret ballot. The election to the Assembly were held in September 1951 and on November 5, 1951, the Constituent Assembly was inaugurated. Accordingly a delegation from the State headed by M A Beg visited Delhi and was chalked out an agreement known as Delhi Agreement. According to this agreement, “It was agreed between the two Governments that in accordance with Article 5 of the Indian Constitution, persons who have their domicile in Jammu and Kashmir shall be regarded as citizens of India, but the State legislature was given power to make laws for conferring special rights and privileges on the ‘state subjects’ in view of the ‘State Subject Notifications of 1927 and 1932: the State legislature was also empowered to make laws for the ‘State Subjects’ who had gone to Pakistan on account of the communal disturbances of 1947, in the event of their return to Kashmir”. This would stand consistent with the competence of India under the Instrument of Accession as stipulated under Article 8 of the Accession and subsequently reflected through Delhi Agreement and accepted in principle by the Government of India.

The Jammu and Kashmir Constituent Assembly adopted a motion of approach on 21 August 1952 two weeks subsequent to Indian parliament’s acceptance of the Delhi Agreement but the implementation of the Agreement took place only in 1954. On 20 October 1953, two months after the second Interim Government was instituted, the Constituent Assembly of the State reconstituted the Basic Principles Committee, the Advisory Committee on Citizenship and Fundamental Rights, the Steering Committee and the Drafting Committee. The Delhi Agreement, concluded between the Conference leaders and the Central Government in July 1952, was referred to the reconstituted Committees for their reconsideration. A Joint Sub-Committee of the two Committees, the Basic Principles Committee and the Advisory Committee on Citizenship and Fundamental Rights, was constituted on 4 January 1954, to examine the stipulations of the Delhi Agreement and submit to the Constituent Assembly, proposals for its implementation.

The Basic Principles Committee on Fundamental Rights and Citizenship presented its report on 12 February 1954 and the report was adopted by the Constituent Assembly on 15 February 1954. [A. S. Anand. The Constitution Of Jammu And Kashmir: Its Development And Comments, 117 (5th edn., 2006), see also Josef Korbel, Danger In Kashmir, 244 (2008)]. The Report of the Advisory Committee on Fundamental Rights and Citizenship reads that “The State having acceded to the Union of India, every State Subject and every person having his domicile in the State is a citizen of India…It is however, recognised by the Government of India that this portion would not affect the existing State Subject definition… The power of the State Legislature to define ‘Permanent residents of the State’ in future in any manner it deems fit and to regulate the special rights and privileges of the permanent residents of the State should be preserved”.

It clearly indicates that the Government of India had accepted in principle what was later applied through Article 35 A. The acceptance of this principle is also reflected in terms of Section 6(3) of the Jammu and Kashmir Constitution defining State Subject having the same meaning as in the State Notification dated 1927 and 1932 issued by the then Maharaja of State.

It may be noted that insertion of Article 35 A was not a personal exercise of the then President which could be challenged on the ground of abuse of power. It has its own politico-legal history and has developed in the background of this politico-legal evolution only. Thus purporting to act in contravention to this granted legal competency would amount to breach of treaty obligations and thus would also stand opposed to the obligation imposed as fundamental in the governance of the country under Article 51 (c) of the Constitution of India which makes it obligatory for the Government of India to respect international law, treaty obligations in dealing of organized people with one another which the people of India and Jammu and Kashmir are.

The third dimension of the issue is more complex than other ones.

Assuming for the sake of arguments that insertion of 35 A was without legal competency.

Jammu and Kashmir convened its Constituent Assembly on 31st October 1951 which was dissolved on 17th November 1956 after adopting a Constitution for Jammu and Kashmir. It came into force from 26th January, 1957. The executive and legislative competences of the Union were limited to matters mentioned in the Instrument of Accession. The preamble of the Jammu and Kashmir Constitution also lend support to this contention which reads as “We the people of the State of Jammu and Kashmir having solemnly resolved, in pursuance of the accession of this State to India…” implying thereby that conditions under the Instrument of Accession are intact.

The Constitution (Application to J&K) Order, 1950 that came into force from 26th January, 1950 was superseded by a Presidential Order of 1954 to implement the Delhi Agreement of 1952. The 1954 Order extended Indian Citizenship to Jammu and Kashmir, Article 35A was added empowering the state legislature to legislate on privileges of permanent residents with reference to immovable property, settlement in the state and employment, among other things. It is conceded that Article 35 A was not passed by the Parliament as required by Article 368 and consequently is not a part of the Constitution. The question of it being extended to Jammu and Kashmir even by consent of the state Government cannot arise at all because it was never made a part of the Constitution by acting under Article 368. The Parliament of India cannot empower the state legislature under a separate Constitution to make any law. Article 35A is an exercise in futility which was totally unnecessary as the state was ONLY in a confederal relation with India, not even a political federal relation. The Jammu and Kashmir state always had the power to make laws for Jammu and Kashmir including all matters mentioned in Article 35A. This power was never surrendered by the Instrument of Accession. India’s competences vis-a-vis Jammu and Kashmir were limited to matters mentioned in the Instrument of Accession which is reflected subsequently through various Instruments. This limitation on the sovereignty of India was accepted by India in an exercise of its own sovereignty. In all the three situations, the competency of any municipal institutions is ousted out, legally speaking, for any dispute over treaty implementation; the municipal courts would have no jurisdiction. Read also in the context of the proviso to Article 131 of the Constitution of India which provides that the Supreme Court shall have no jurisdiction to a dispute arising out of any treaty or agreement having been entered before the commencement of the Constitution and continue to be in operation after such commencement.

It is pertinent to mention that as per the norms of general international law, international law can control the municipal law and not the otherwise. It would therefore be impossible to resist a conclusion that the relationship between India and Jammu and Kashmir are placed on principles of international relations only and are not placed properly or legally under any constitutional provisions. The principles governing international relations will adequately answer the requirements.

(Dr. IrfanRasool has a Ph.D from NLSIU, Bangalore on “The Legal Implications of the Instrument of Accession: A Case Study with Reference to the Jammu and Kashmir State.”)